CA: Judge Issues Final Ruling in Prop. 57 Case

Emergency regulations, intended to implement Proposition 57 and issued by the California Department of Corrections and Rehabilitation (CDCR), must be set aside, according to a final ruling released today by a Sacramento Superior Court judge. The ruling specifically stated that “CDCR cannot substitute its judgment for what it wishes the drafters of Proposition 57 had said. Nor may CDCR’s…regulations override a clear directive in the Constitution.

“Due to this ruling, CDCR’s emergency regulations issued in March 2017 cannot be enforced and new regulations must be issued. The new regulation must define “‘nonviolent’ in a manner consistent with the Constitution and the voters’ directive.”

“Today’s ruling confirms and expands upon the judge’s tentative ruling issued about a month ago,” stated ACSOL Executive Director Janice Bellucci. “It is a significant victory for prisoners convicted of a sex offense.

“The lawsuit, which was filed in April 2017, focuses upon CDCR’s regulations which excluded anyone convicted of a sex offense from benefiting from under Prop. 57. A hearing on the matter was held on February 9, 2018.

“Proposition 57 did not include an exclusion for people convicted of a sex offense,” stated Bellucci. “Therefore it was improper for CDCR to create such an exclusion in its emergency regulations.”

Today’s ruling also required Petitioner, the Alliance for Constitutional Sex Offense Laws, to prepare a formal judgment and writ for the judge’s review.

Prop. 57 is a ballot initiative approved by the public in November 2016. One part of that ballot initiative provides for early parole consideration for anyone convicted of a non-violent offense. The ballot initiative did not, however, include a definition of that term.

Wow. They are going to appeal after they stated 667.5 was for enhancement purposes? What if it was a first offense for let’s say 288 (a) Lewd & Lascivious and there was no enhancement and in the charging documents 667.5 was never mentioned? I know of one… This could be good for some… I hope you bring in the real statistics…I read some of the friends of the court briefs on Moral Panics…and there are some great articles…about how the U.S. Supreme Court had their stats wrongs…and the CDCR have the Static 99..to determine “risk”..and on top of that, they don’t use it…288 (a) Lewd and Lascivious for instance: Fondle a breast IS not violent…

@Lisa R
I admit up front that I am clueless about this particular situation, but I was told that anything that involves a child under 14 is automatically considered Violent and makes you a Serious offender.

California’s penal code states that any acts with a minor under that age of 14 is classified as violent, even if no violence or threats of violence was used.
My daughter (victim) even disagrees with this sentiment, but the state doesn’t care about her opinion if it doesn’t match up to what they want her to think/feel.

From People v Hetherington 1984 regarding 667.5 (c) (Was it the people’s intent in voting in Prop 57 include psychological or emotional harm? A lot of crimes could have that effect on their victims: a stolen vehicle, property damage, theft) In addition to the above, two other points are particularly persuasive indicators the Legislature intended to include section 288, subdivision (a) offenses within section 667.5, subdivision (c)(6). Foremost is the clear and unambiguous language of the statute: “Lewd acts on a child under 14 as defined in Section 288.” (Italics added.) [2] We must follow the plain meaning of the statute unless doing so will produce absurd results or will frustrate the manifest purpose of the legislation considered as a whole. (People v. Belleci (1979) 24 Cal. 3d 879, 884 [157 Cal. Rptr. 503, 598 P.2d 473].) [1b] As shown above, we need not be concerned with producing absurd results by including section 288, subdivision (a) offenses within section 667.5, subdivision (c)(6). We must be concerned, however, with following the manifest purpose of section 667.5, subdivision (c). That concern leads to the second indicator of legislative intent. Section 667.5, subdivision (c) states: “The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society’s [154 Cal. App. 3d 1140] condemnation for such extraordinary crimes of violence against the person.” (Italics added.) We consider it significant that the statute refers simply to “violence” rather than to “physical violence,” “physical injury” or “bodily harm.” The statute’s unadorned language indicates the Legislature intended to impose increased punishment via section 667.5, subdivision (c) not only for certain felonies which are “violent” in a physical sense but also for other selected felonies which cause extraordinary psychological or emotional harm. (Cf. People v. Caudillo (1978) 21 Cal. 3d 562, 582 [146 Cal. Rptr. 859, 580 P.2d 274] [reference to “physical injury” in § 12022.7 does not include psychological or emotional distress].) By adding subdivision (c) to section 288 in 1981 (see fn. 5, ante), the Legislature recognized both subdivisions (a) and (b) violations often cause irreparable psychological and emotional damage to child victims. Therefore, “to display society’s condemnation for such extraordinary crimes of violence against the person,” the Legislature included both subdivisions (a) and (b) within section 667.5, subdivision (c)(6). The Legislature acted within its discretion, based on its proper concern for the welfare of children, to include subdivision (a) offenses (but not to include other physically “nonviolent” sex offenses) within the scope of section 667.5, subdivision (c). Accordingly, we hold Hetherington’s section 288, subdivision (a) offenses are “violent felonies” under section 667.5, subdivision (c)(6) and thus the five-year subordinate term limitation of section 1170.1, subdivision (a) does not apply.

Susan Clancy extensively researched and interviewed many victims of childhood sexual abuse to write her book, “The Trauma Myth.” In the course of her work, she was shocked to realize that many of her assumptions, as well as those of professionals, were completely wrong. Here is a quote from that work:

“There is something wrong with how many professionals understand sexual abuse; the dominant conceptualization of the crime, which underlies most research into sexual abuse, as well as both theorizing and cultural stereotypes about the subject, is not accurate. As I came to see, while some cases of sexual abuse certainly are traumatic when they happen—the child is terrified or in pain; force or violence is involved—the vast majority are not. “Trauma” is simply not a good characterization of the reality of sexual abuse.”
Clancy, Susan A.. The Trauma Myth: The Truth About the Sexual Abuse of Children–and Its Aftermath (p. 180). Basic Books. Kindle Edition.

@David Kennerly, The Government-Driven Life – these labels and general assumptions are beyond stupid.

To equate, say, the forcible rape of an 8 year old to an older teenager / young adult making out or touching the chest area or upper thigh of a freely participating 13 year old is absurd.

Regarding the trauma experienced by willing post-pubescent / mature teenagers (like in an inappropriate teaching / coaching setting) – I am convinced that the majority of the “trauma” is inflicted by being put through the “system”, as well as the knowledge that one’s willing and voluntary conduct ruined a person and possibly a family.

guest: Of course. In my case, the kid’s interrogation was far worse than any questioning I had at the hands of authorities. Actually, I was never questioned by police as I knew better than to be interrogated. It involved being forcibly removed from the school (and against the parents’ wishes) more than five times in order to extract an actionable allegation. That’s real trauma. Also, and very conveniently, the tape was heard by my first investigator who said that it was very rough with the recording going on-and-off frequently and lots of crying and badgering and threatening by the cops. Unfortunately, that tape was “lost” by the prosecution and was not available to my actual, paid-lawyer and his investigator, my having been represented temporarily by a public defender (who could not hide his contempt for me) until I could find a paid lawyer. As it turned out, my paid lawyer was probably not much better. I noticed recently that he has been disbarred for screwing over his clients. Taking their money and doing nothing and failing to act in their best interests.

So the state only cares about showing its condemnation of the crime, and in proclaiming what a great moral institution it is.
How come it can’t show self condemnation for ruining life for both offender, victim and anyone around them who truly cares about them as individuals rather than abstract concepts?
This condemnation doesn’t even prevent new crimes. For the one caught, nine out there are still going to be caught doing it.
Then the DA can puff up his feathers once again and crow about what a superior moral bird he is.

In response to David Kennerly, there was a case in my state several years ago where it took the state nine months to convince (badger) two older teenage male students into “believing” that they were “victims” in their relationship with a young female teacher. It was absurd.

Yeah, the reformers talk about reducing incarceration for only non-violent offenders. It is politically palatable to many on both sides. It is this nice offender vs bad offender strategy, that’s not going to work. It only supports the status quo, that prisons work to keep us safe. The lock them up people will just reclassify more offenses as violent. In the end the non effectiveness of ever increasing prison sentences will have to be addressesed as the real reason to release people.

They should spend some time in prison to get any real insights into the dangers posed by whichever class of inmates. My experience there taught me to fear many of the drug offenders, who were often some of the most violent inmates, and to prefer – generally speaking, the company of the murderers and the sex offenders, who were often the most calm and who tended to mind their own business. This is something the public doesn’t know at all.

They don’t often have documentarians roaming freely in the prisons. Recently I saw a PBS Frontline on solitary confinement and generally the dismal conditions in our nation’s prisons. That’s kind of rare, and people will think the inmates deserve it anyway, exept a few public television liberals. Maybe we should resurrect one of Jeremy Bentham’s ideas and require the public go visit the prisons personally now and again to see what their paying for. He proposed that to serve as a deterrent to crime, but I think it would serve more to keep the institutions honest.

His architectural idea of the “panopticon” prison was pretty intriguing though extremely creepy in its realized instantiations. Just look up “panopticon” in Google images. They’re no longer needed, of course, given video cameras. It will give you a chill.

Well the way I see it, the fact that the judge said they have to define nonviolent in a ay consistent with the constitution pretty much means they’re gonna have to stick to what the law says. The voter initiative is one thing, but that’s just another. It’s done.

Let me understand this correctly. My brother who has been incarcerated for 22 years for credit card fraud (a nonviolent felony) under the 3 strikes law is still ineligible from the parole process because he is required to register as a sex offender for a 288 he committed and spent 5 years in prison in 1985?

At what point is society going to quit punishing people for crimes they committed 38 years ago. Ironically he never committed another set crime so contrary to CDCR’S fallacies, not all offenders recommit sex crimes.

Someone please tell me when/if 3xer’s currently in prison for minor crimes with PRIOR sex offenses going to be eligible for parole consideration?

Finally, great job on the lawsuit. Keep up the great work and bring our loved ones home.

ACSOL, including but not limited to its board members and agents, does not provide legal advice on this website. In addition, ACSOL warns that those who provide comments on this website may or may not be legal professionals on whose advice one can reasonably rely.

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